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Will Mediation ever be compulsory?

View profile for Nick Stockley
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It seems that the pro mediation movement has been given another shot in the arm following comments from Lord Neuberger. The president of the Supreme Court  has given an indication that he would support making mediation compulsory in smaller civil cases. This brings the immediate issue of what is a “small” civil case and why should it be restricted to small civil cases. If the aim behind enforced mediation is to take additional steps to bring disputes to a prompt and potentially cheaper resolution then surely it should be imposed on all cases, especially those where the claim value and subsequent spend on legal costs will be much higher and the case will go on for much longer.

 

Lord Neuberger, is his speech ‘a view from on high’ (most apt) praised mediation for being quicker, cheaper, less stressful and less time-consuming than litigation and advised that the potential outcomes were more flexible and more likely to leave both parties emerging as ‘winners’. Lord Neuberger’s comments are essentially a standard pro-mediation mantra and can be found in any mediation training manual. However, it does beg the question why these potential advantages would only apply to “small” cases.  The main issue is whether mediation should be compulsory or not and whether this skews the voluntary nature of mediation which purist mediators insist upon and not compulsory mediation would be more successful in a specific value of case. The compulsory nature should not be restricted to “small” cases in my view.

 

There appears to be a natural reticence to enforce mediation but the sooner that the plunge is taken the better. The idea of compulsory mediation has been flirted with for years and if it is to be Neuberger’s legacy then so be it. Given that most disputes over £10,000 involve a  month’s delay while the parties are allowed to try to settle this stay in proceedings would be the ideal opportunity to force mediation on the parties. If mediators had more work,  their costs could be brought down as well. The cost of mediation is something which can prevent mediation at times in the smaller cases.

 

Lord Neuberger went on to argue that there is ‘a lot of be said’ for extending compulsory mediation information and assessment meetings (MIAM). The MIAM scheme, which is often free, currently has to be used before parties can bring family proceedings. Neuberger also advocated extending mediation to contract-based disputes such as possession claims based on nuisance and annoyance. This is, again, the usual dilution of the move towards compulsory mediation but would, nonetheless, be a good starting point.  

 

The arguments that compulsory mediation simply adds an additional layer of costs and that compulsory would be pointless because the voluntary nature of mediation makes it more likely to be successful are valid to an extent. However, many clients are reticent to try mediation and only realise its benefits once they use the process.  Surely, it is more beneficial for disputing parties to have their eyes forced open to mediation rather than potentially miss out on the benefits altogether.

 

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